Battle for access to information underlying the UK CMA dawn raid of Concordia

On 5 December 2018, the High Court rejected Concordia’s application to obtain full access to the information underpinning the Competition and Markets Authority’s (CMA) application for a warrant for a dawn raid, over which the CMA had claimed public interest immunity (PII). The judge did, however, allow Concordia access to some information.

This ruling is the most recent episode of an ongoing battle between Concordia and the CMA on the legitimacy of starting an investigation by dawn raid, and the legitimacy of the warrant underlying that raid. The raid in question was one of the cohort of investigations that started in October 2017 (some of which have progressed on substance and some of which have since been closed). Concordia, which is involved in some of these cases, is seeking access to the information that formed the basis of the CMA’s application for the warrant. Initially, Concordia argued that the CMA could not rely on material covered by PII, and took the fight to the Court of Appeal. Following the Supreme Court’s ruling in Haralambous, the court conceded that the CMA was entitled to rely on such materials. However, it continued its fight to argue that such materials should be subject to independent review by a special advocate. This was rejected in November.

The ruling on 5 December dealt with Concordia seeking the disclosure of the PII materials into a confidentiality ring. Without such disclosure, Concordia argued, it could not properly prepare its arguments for the hearing on the variation of the warrant, which is due to take place on 19 December. Mr Justice Marcus Smith ruled that the substance of the PII materials (an affidavit by X) would remain protected. The judge did, however, make available an un-redacted first page of the affidavit showing the identity of the person making the affidavit. The judge also ruled that the CMA had to disclose information from the affidavit that had been before Mr Justice Mann when he granted the warrant, as otherwise Concordia could only make those arguments in a ‘theoretical way’.

The ruling is important in that it limits the rights of companies to obtain access to all underlying materials when they challenge the warrant. At the same time, it also limits the blanket use of claims of PII. The bigger question in this saga is around the limits of the CMA’s ability to use a dawn raid as an investigative tool when it could (arguably) obtain that information through compulsory information requests based on section 26 of the Competition Act 1998 (so-called s.26 notices). For an answer to this we will need to await the outcome of the hearing on 19 December 2018.